2014 (3) TMI 936 - HC - Income Tax

Validity of s.148 notice upheld when issued within four years; proviso's heightened deliberate concealment finding not required

HC upheld validity of the s.148 notice, finding it issued within four years of the relevant assessment year and not requiring the proviso's heightened ... Validity of Notice u/s 148 of the Act - Reopening of assessment – Income escapement - Held that:- Notice for reopening had been issued within a period of four years from the end of the relevant assessment year - the additional requirement arising out of the proviso to Section 147 of the Act of the income escaping the assessment due to failure on the part of the assessee to disclose truly and fully all material facts would not arise - certain aspects of the matter were brought to the notice of the AO by the audit party. The Assessing Officer was convinced that on third ground recorded in the reasons, income chargeable to tax had escaped assessment - such ground was also brought to her notice by the audit party and that by itself would not mean that she was acting at the instance of the audit party – Relying upon Commissioner of Income Tax v. P.V.S Beedies Private Limited[1997 (10) TMI 5 - SUPREME Court] – if a particular issue is brought to the notice of the AO by the audit party and the AO of his/her application of mind finds that the ground is valid, reopening of assessment cannot be quashed merely because such ground was brought to the notice of the AO by the audit party - thus, the notice cannot be quashed – Decided against Assessee. Issues:1. Challenge to notice for reopening assessment under Section 148 of the Income Tax Act, 1961 for Assessment Year 2001-2002.2. Validity of reasons recorded by the Assessing Officer for issuing the notice.3. Objection raised by the petitioner against the notice for reopening.4. Allegation of Assessing Officer acting at the behest of the audit party.5. Dispute over certain objections raised by the audit party.6. Consideration of remedial actions available in the case.7. Assessment of whether income chargeable to tax had escaped assessment on specific grounds.Analysis:The petitioner challenged a notice dated 16th January 2006 issued by the Assessing Officer under Section 148 of the Income Tax Act, 1961, proposing to reopen assessment for the Assessment Year 2001-2002. The reasons for reopening included under-assessment due to failure to disclose accrued interest income, disallowance of interest debited to the P&L account, and excess depreciation claimed. The petitioner raised objections to the notice, which were rejected by the Assessing Officer, leading to the filing of the petition.The main contention of the petitioner was that the Assessing Officer acted at the behest of the audit party, and the reopening was not based on independent reasons. The court noted that the reopening was within the four-year period from the end of the relevant assessment year, eliminating the requirement of income escaping assessment due to non-disclosure of material facts. The court examined the original file and found that the Assessing Officer had disputed certain objections raised by the audit party, indicating independent decision-making.The court considered the objections raised by the audit party, including accrued interest income, disallowed interest debited to the P&L account, and excess depreciation claimed. The court observed that the Assessing Officer had valid reasons for reopening based on the third ground related to income escaping assessment. The court cited Supreme Court judgments emphasizing that if the Assessing Officer finds valid grounds for reassessment, even if brought to notice by the audit party, the reopening cannot be quashed solely on that basis.Regarding the dispute over depreciation, the court noted that the question of asset usage before the specified date required reexamination. As a result, the court declined to quash the notice for reopening assessment based on the valid ground identified by the Assessing Officer. The petition was dismissed, and any interim relief was vacated, upholding the notice for reopening assessment.